HUNGWE J: The plaintiff claims for damages for breach of
contract arising to an oral agreement entered into between him on one hand and
the defendant on the other; interest at the prescribed rate together with costs
of suit. At the pre-trial conference the issues were identified as:
(a) Whether the
plaintiff paid the defendant the full amount required for the construction of a
pre-cast wall around his immovable property.
(b) Whether or not
the defendant is in breach of the agreement.
(c) Whether or
not the plaintiff is entitled to restitution, and if so, the quantum
thereof.
The trial proceeded on the evidence of the two parties
involved. The onus lay on the plaintiff in respect of all the issues. For his
part the plaintiff's evidence amounted to the following:
He entered into a verbal agreement with the defendant in
terms of which, upon payment of the full price required for the construction of
a pre-cast wall, commonly called a “durawall,” the defendant would commence
construction and complete such construction by 30 January 2008. Plaintiff
paid, over time, various amounts by bank transfers, cheques and cash, amounts
totalling ZW$2,300,000,000-00. The defendant failed to construct the pre-cast
wall of the quality which the parties had agreed and acknowledged his failure
in writing to do the job within the agreed time frame. He agreed to
compensate the plaintiff for the breach.
According to the evidence led by the plaintiff, the
defendant used poor quality materials in the process of construction, such that
the pre-cast wall would collapse before the side under construction was completed.
What led to this, the evidence showed, was that the cement-to-sand ratio used
in the manufacture of the panels was so weak that the panels would not bear
their own weight upon being fitted into the frame. It became clear to the
plaintiff that the defendant had neither the capacity to carry out the agreed
work nor the ability to do so. Despite several written undertakings to complete
the work within agreed times, the defendant failed to do so. In the end it was
quite apparent that the defendant was not up to the task. The plaintiff sued
for breach of contract.
The defendant's evidence was that he had not failed to
complete the work. He insisted that it was due to the plaintiff's impatience
that led to the collapse of the agreement. He claimed that he had put up a
greater part of the pre-cast wall and prayed that the claim be dismissed. Had
the defendant anticipated that the plaintiff would produce photographic images
of the site in question he would not have insisted on denying certain of the
plaintiff's claims in his pleadings.(See Ex 10). The plaintiff demonstrated
that between the two parties the plaintiff's version is to be believed when he
says the defendant had failed to carry out his obligations in terms of the oral
and written undertakings by the defendant.
I am therefore satisfied that he was in breach of the
agreement to construct a pre-cast awall.
The defendant contended that the plaintiff had not put him
in funds sufficient to complete the construction of the perimeter pre-cast
wall. What the plaintiff paid, according to the defendant's contention, was
only a deposit. He was prevented from completing the construction because the
plaintiff claimed that the workmanship was of poor quality and thereafter
ejected the defendant from the site. In these circumstances the defendant
contends that the plaintiff cannot lawfully claim the full amount of the
construction of the perimeter wall. Upon being ejected from the site, the
defendant claims that he made a tender for payment but this was rejected. The
plaintiff claimed and demanded payment in United States dollars at a time when
only the Zimbabwe dollar was legal tender.
At the close of his case, the plaintiff appeared unsure
regarding the amended claim which now sounded in foreign currency. Mr Muza
who appeared for the plaintiff, went out of his way to demonstrate why an award
in foreign currency was justified in all the circumstances of this case. In his
closing submissions, Mr Muza relied on the principle that an innocent
party is entitled to an order of specific performance or, if that is not
possible, and award of damages, in so far as that would put the innocent party
in the position he would have been had the breach not occurred. In the present
case, specific performance is not possible because, first, the defendant had
failed to perform in terms of the contract. As such the remedy of specific
performance is not appropriate. Secondly, the defendant had, at the time of
hearing, disbanded his pre-cast walling business which had, like other businesses
at the time in Zimbabwe, suffered an economic collapse.
It seems to me that the principle applicable in the present
matter should be that which would put the plaintiff in the position he would
have been had no breach occurred. In a case in which an owner, who had no
option but to complete a contract which the contractor had left unfinished,
thereafter sues the contractor for damages for breach of contract, damages
should be assessed by reference to the cost actually incurred by the owner in
completing the work. Prima facie this is the amount which, in all the
circumstances, is required to bring about restitutio in integrum, and
the owner is only to be deprived of the full cost incurred if by his conduct,
judged objectively, is found, on a preponderance of probabilities, to be
unreasonable. The onus of proving that the owner acted unreasonably in
incurring all or some of the costs of completing the contract rests upon the
contractor. Whether it was reasonable for the owner to approach a single
contractor only, or whether he should have obtained quotations from a number of
other persons before seeking the completion of the work in hand, must
necessarily depend upon the particular circumstances of each case. Reid
v L S Hepker & Sons (Pvt) Ltd 1971 (2) SA 138 (RA).
In both contract and delict the basic aim of an award of damages is to bring
about, as far as possible, restitutio in integrum - see LivingstonevThe
Rawyards Coal Co.,(1880) 5 A.C. 25at p 39, andDe JagervGrunder,1964
(1) SA 446 (AD) at p 456. Clearly, if the plaintiff is not awarded the full
amount he paid in order to complete the contract, he will be out of pocket and
will, accordingly, not be restored to the position he would have occupied had
there been no breach by the defendant. What this principle speaks to is the
requirement that the damages be measured by the actual cost incurred by the
plaintiff in order to complete the construction of the pre-cast wall after he
ejected the defendant from the site. The issue therefore is whether the
plaintiff has proved the cost to him to complete the project. Unfortunately he
has not. All that the plaintiff has done is to produce and rely on quotations
of what it might cost to re-do the wall. What is required however is more. The
plaintiff is expected and required to prove that he has since had to complete
the project and that he had incurred a given extra cost attributable to the
breach by the defendant.
The plaintiff conceded that what he had paid the defendant
amounted to 75% of the actual cost to put up the structure. One must also give
credit and make appropriate deductions for the posts left insitu by
the defendant as depicted in exh 10. The plaintiff did not raise any complaint
regarding the quality of these upright posts. What value to attach to these up
right posts can only be a matter of rough estimation as both the defendant and
the plaintiff did not provide sound mathematical basis to apply in arriving on
the values thrown around during trial. At the end of the day it is difficult,
on the evidence to say that the plaintiff has, on a balance of probability,
proved his case. I say this because I am of the firm view that exact and
definitive values are capable of establishment. In all the circumstances I am
unable to say that the plaintiff's case has been proved.
In the result I grant absolution from the instance.
Muza & Nyapadi,
plaintiff's legal practitioners
